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FOIL-AO-15904

April 10, 2006

E-Mail

TO:

FROM: Camille S. Jobin-Davis, Assistant Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear

We are in receipt of your request for an advisory opinion concerning application of the federal Freedom of Information Act to a request made to the Federal Bureau of Investigation for two mugshots, one of a deceased person and one of a person serving a life sentence in a Federal penitentiary. In this regard, we offer the following.

The federal Freedom of Information Act (5 U.S.C. §552) applies only to agencies of the federal government. The New York Freedom of Information Law, Article 6 of the Public Officers Law, does not apply to the Federal Bureau of Investigation. While the Committee on Open Government is authorized to issue advisory opinions concerning application of the Freedom of Information Law, this office has no authority to advise with respect to the availability of records from the federal government.

With respect to your questions about the accessibility of mugshots from a New York State or local agency, we note that as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

The provision of greatest significance is §87(2)(b), which authorizes an agency to withhold records to the extent that disclosure would result in an unwarranted invasion of privacy. From our perspective, that standard is flexible and is subject to a variety of interpretations. A reasonable person viewing a particular item of personally identifiable information might feel that disclosure would be offensive, thereby resulting in an unwarranted invasion of personal privacy. An equally reasonable person might contend that disclosure of the same item would be appropriate or inoffensive, thereby resulting in what might be characterized as a permissible invasion of privacy.

With respect to the subjects of mugshots, it is assumed that individuals arrested could have been seen during judicial or other proceedings (i.e., arraignments) that were open to the public. If the public can be present at or view a proceeding during which an arrestee can be identified, it is difficult to envision how a photograph of that individual would constitute an unwarranted invasion of personal privacy.

While disclosure of mugshots might embarrass or humiliate the individuals in those photos, there are many instances in which records have been determined to be available even though they represent events or occurrences that may be embarrassing. When individuals are arrested and/or convicted, their names and other details about them are generally made available and may be published; when a public employee is the subject of disciplinary action, that person’s name and other details about him or her are accessible to the public, irrespective of whether the individuals to whom the records pertain may be embarrassed by their actions [see e.g., Daily Gazette v. City of Schenectady, 673 2d 783, (A.D. 3 Dept. 1998); Anonymous v. Board of Education for Mexico Central School District, 616 NYS 2d 867 (1994); Scaccia v. NYS Division of State Police, 520 NYS 2d 309, 138 AD 2d 50 (1988); Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981]. In short, in many cases, even though individuals may be embarrassed by particular aspects of their lives, that factor may have little or no bearing upon public rights of access to records concerning what might be considered as public events in which the public interest in disclosure outweighs an individual’s interest in privacy.

In the only decision of which this office is aware that dealt with relevant facts, the court determined that the mugshots regarding all persons arrested must be disclosed, unless charges were dismissed in favor of the accused. In general, when charges against an accused are dismissed or terminated in favor of the accused, the records pertaining to the event become sealed under the Criminal Procedure Law, either §160.50 or §160.55. When the records are sealed, they are exempted from disclosure under the Freedom of Information Law [§87(2)(a)]. With respect to disclosure of the mugshots of those persons against whom the charges were pending in which the records had not been sealed, the court held that the agency could not meet its burden of proving that the privacy exception could validly be asserted [Planned Parenthood of Westchester, Inc. v. Town Board of the Town of Greenburgh, 587 NYS2d 461, 463 (1992)].

In sum, unless cases against individuals charged are considered to have been terminated in their favor, in which instances the mugshots would be sealed, we believe that mugshots maintained by New York State or local agencies must be disclosed pursuant to the Freedom of Information Law.

With respect to your question about where to direct your request, we note that a death certificate for a person who expired in Brooklyn is most likely maintained by the New York City Department of Health, Office of Vital Statistics, 125 Worth Street, New York, NY 10013 (212) 788-4500.

On behalf of the Committee on Open Government, we hope this is helpful to you.

CSJ:jm